SUPERIOR COURT OF JUSTICE - ONTARIO
B E T W E E N:
Themistocles Kyriakopoulos
Plaintiff
-AND-
Gregory Lafontaine
Defendant
BEFORE: F.L. Myers J.
READ: September 30, 2015
endorsement
[1] This motion was referred to me by the registrar’s office following receipt of a written request of counsel for the defendant under Rule 2.1.01(6).
[2] The Fresh as Amended Statement of Claim alleges that the defendant committed lawyer’s negligence in his oral argument of an appeal. The claim was drafted by a lawyer and sets out a clear cause of action. Despite the discussion in Covenoho v Ceridian Canada, 2015 ONSC 2468, the defendant has ignored the process provided in Rule 2.1.01(3) which provides:
(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:
The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.
The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.
If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.
If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.
A party who receives a copy of the plaintiff’s or applicant’s submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff’s or applicant’s submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.
[3] Rather than filing a simple requisition under Rule 2.1.01(6) and awaiting a call for submissions under Rule 2.1.01(3), if any, the defendant has delivered written argument, a copy of the factum in the underlying appeal, and a transcript of the defendant’s oral argument before the appellate court. None of the exhibits are sworn.
[4] The defendant also makes submissions concerning discoverability without any evidence.
[5] This motion is a wholly inappropriate use of Rule 2.1. Rule 2.1 is for claims that are frivolous, vexatious, or an abuse of process on their face. It involves an attenuated written hearing process that is designed to nip in the bud cases that appear to be so abusive that merely providing an oral hearing to consider the pleading could itself be an abuse the process. Rule 2.1 is not for close calls let alone cases in which there is a real dispute between the parties.
[6] Nothing on the face of the statement of claim gives any indication that the plaintiff is a vexatious or querulent litigant. The statement of claim is not frivolous or vexatious on its face. The defendant’s submissions are full of unsworn facts both as to the issues in the underlying appeal and the alleged reasoning that motivated the defendant to deviate in oral argument from the written argument contained in his factum. There is no expert evidence provided to support the submissions.
[7] The fact that the defendant found it necessary to make factual and legal submissions supported by documents to make the request under Rule 2.1.01(6) ought to have led him to realize that the action was not one to which the Rule applied. Such ex parte submissions with unsworn evidence and documents are neither fair nor appropriate. Raji v. Borden Ladner Gervais LLP, 2015 ONSC 1355.
[8] Rules 2.1.01(3)4 and 5 provide that the court may call for submissions from a defendant in appropriate cases. If that is not done, there is no room in Rule 2.1 cases for such submissions.
[9] If the plaintiff has incurred any assessable costs as a result of the delivery of the defendant’s request under Rule 2.1.01(6) he may make up to two (2) pages of costs submissions by October 16, 2015. The defendant may respond with up to two pages of submissions by October 23, 2015. All submissions shall be delivered in searchable pdf format as attachments to an email to my Assistant.
[10] The registrar shall send a copy of this endorsement to counsel for each of the parties by email and regular mail.
________________________________ F.L. Myers J.
Date: September 30, 2015